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Joseph
Joseph, Lawyer
Category: California Employment Law
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Experience:  Extensive experience representing employees and management
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Hello, My question is regarding my employee rights according

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Hello,

My question is regarding my employee rights according to labor/compensation law in California for salaried (exempt) employees:
I submitted a voluntary resignation letter to my employer on December 14th, 2012 with effective date of December 28th, 2012 (2 weeks notice). I was an employee in good standing with no special circumstances (no loans, outstanding dues, etc). On my last day (12/28/2012), they notified me during my exit interview that they did not have my final paycheck ready due to the fact that our company had been undergoing an integration process (we were acquired almost two years prior so they were still undergoing a massive integration for HR/payroll systems to the new company's platform). Apparently this was causing some delays for them in processing my final paycheck. They notified me that they should have my paycheck in a few days so to make up for the delay, they will add a few extra days' pay to my paycheck. Also, I reminded them that they should include pay for any unused vacation time that I had accrued and they confirmed that if there was any eligible vacation time, they would include that in my pay as well. FYI - I took a screenshot of my PTO time accrued as captured on my HR portal before leaving to prove that I did indeed have unused vacation pay.

On January 10th, 2013 I received a direct deposit to my bank account. However, this amount deposited did not seem to add up to my expectations based on how much time off I had accrued and the extra pay for check delays. After a series of failed attempts to get in touch with my HR rep (she answered the first e-mail but then ignored the next two) I finally got a hold of the new acquiring company's HR/payroll dept and inquired about getting an itemization for this last paycheck so I could determine what this lump sum was for. They eventually produced one and it didn't show anything about bonus delay pay or vacation pay. So I contacted the payroll dept again on February 8, 2013 to dispute/report it and they confirmed that they did in fact overlook my vacation pay and also noted my comments about being told I would be owed additional pay for delayed check processing. They indicated that they had opened a case to investigate and that someone would follow up to resolve the matter. My questions are:

a) what rights do I have considering they did not pay me on time? (last day of employment was 12/28/12 but pay was electronically deposited on 1/10/2013. Do I have any rights to be paid delay pay for every day and if so, does this include holidays like xmas and new year or just non holiday days?

b) since I did not authorize direct deposit for my last paycheck, does this factor into anything? My understanding is that they must have explicit consent from me to direct deposit in to my account (otherwise they must furnish a live check). Although this may be a law, what are the repercussions of them not adhering to it?

c) since i tried contacting my HR rep 3 times and she did not respond to my last two inquiries (causing further delay), can i prove that the company was unresponsive and therefore that they owe me the full back pay up to 31 days?

In summary, I'm looking to understand what my rights are as an exempt employee given the situation described so I can follow-up confidently. I don't want them to weasel out of back pay or potentially skirt any potential penalties if they truly do owe me money. I feel they were unresponsive in their efforts to resolve the matter so that should factor into whatever recourse I may have. If you can include references to any specific laws or rules that I can use in future discussions, it would be greatly appreciated as I want to be clear on my rights and whats owed to me since they may eventually need to escalate to small claims or labor law dispute. Although I have not disclosed the company name, please know that they are a Fortune 500 company with a global presence so we'r not dealing with a small fly by night operation. This is a major financial institution with substantial organizational resources.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Joseph replied 1 year ago.
Hello and welcome to JustAnswer.

I'm sorry to hear about your situation and hope I can help.

a) Since you gave your employer two weeks advance notice, your employer was required to give you your final check, including your PTO on the last day that you worked.

You are entitled to a day's wages per day that you were required to receive the money due to you. This only includes business days and not holidays, including Christmas and New Year's.

b) Yes, this is the status of the law. However, this is a law "without any teeth," meaning that there is no punishment against your employer for failing to adhere to this law.

c) If you haven't been paid the full amount due to you then you would be entitled to 30 days of wages as a maximum penalty against your employer. (Technically, this is a penalty and is not considered 'back wages.' You would only be due this penalty and not additional 'back wagess' for your employer's violations of the labor ocde.)

If your employer does not comply with the law, you should file a wage claim against your employer with the Department of Labor.

You can do so using the forms available online here:

http://www.dir.ca.gov/dlse/howtofilewageclaim.htm
Joseph, Lawyer
Satisfied Customers: 5276
Experience: Extensive experience representing employees and management
Joseph and other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
You wrote: "This only includes business days and not holidays, including Christmas and New Year's."

This statement is confusing. Does it include holidays or not? In other words, based on the last date of employment being Dec 28th and knowing my company observes the following holidays: Christmas Eve, Christmas, New Year's day (3 total holidays) - how many days of pay would I be eligible for (regarded as penalty pay) given that my last paycheck was deposited on January 10th BUT on 2/8 they determined they still owed me vacation pay (meaning i was not fully paid).

Second, if they acknowledged on 2/8 that my vacation pay being missed was due to oversight on their part but are willing to correct it (albeit now, almost 40 days later)...am I still entitled to the penalty pay or would the company be given leniancy since they are willing to correct it. In other words, does the fact that they acknowledged their error and willingness to correct it relieve them of the liability for penalty pay for the up to 31 days delay? Any applicable laws I can reference would be appreciated so that they know I'm not just making this stuff up (on the phone, they claimed they were not aware of any law requiring to pay an employee on their last day). For an orgnazition of this size, I'm surprised they didn't.
Expert:  Joseph replied 1 year ago.
It does not include holidays. Only New Year's would be deducted, so you'd still be due 30 days of wages.

Yes, you are still entitled to the penalty pay even though they acknowledged the oversign and were willing to correct it.

Yes, California Labor Code Sections 202 and 203 are relevant and are included below:

202. (a) If an employee not having a written contract for a definite period quits his or her employment, his or her wages shall become due and payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of his or her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting. Notwithstanding any other provision of law, an employee who quits without providing a 72-hour notice shall be entitled to receive payment by mail if he or she so requests and designates a mailing address. The date of the mailing shall constitute the date of payment for purposes of the requirement to provide payment within 72 hours of the notice of quitting. (b) Notwithstanding any other provision of law, the state employer shall be deemed to have made an immediate payment of wages under this section for any unused or accumulated vacation, annual leave, holiday leave, sick leave to which the employee is otherwise entitled due to a disability retirement, or time off to which the employee is entitled by reason of previous overtime work where compensating time off was given by the appointing power, provided at least five workdays prior to his or her final day of employment, the employee submits a written election to his or her appointing power authorizing the state employer to tender payment for any or all leave to be contributed on a pretax basis to the employee's account in a state-sponsored supplemental retirement plan as described under Sections 401(k), 403(b), or 457 of the Internal Revenue Code provided the plan allows those contributions. The contribution shall be tendered for payment to the employee's 401(k), 403(b), or 457 plan account no later than 45 days after the employee's last day of employment. Nothing in this section is intended to authorize contributions in excess of the annual deferral limits imposed under federal and state law or the provisions of the supplemental retirement plan itself. (c) Notwithstanding any other provision of law, when a state employee quits, retires, or disability retires from his or her employment with the state, the employee may, at least five workdays prior to his or her final day of employment, submit a written election to his or her appointing power authorizing the state employer to defer into the next calendar year payment of any or all of the employee's unused or accumulated vacation, annual leave, holiday leave, sick leave to which the employee is otherwise entitled due to a disability, retirement, or time off to which the employee is entitled by reason of previous overtime work where compensating time off was given by the appointing power. To qualify for the deferral of payment under this section, only that portion of leave that extends past the November pay period for state employees shall be deferred into the next calendar year under this section may do any of the following: (1) Contribute the entire payment to his or her 401(k), 403(b), or 457 plan account. (2) Contribute any portion of the deferred payment to his or her 401(k), 403(b), or 457 plan account and receive cash payment for the remaining noncontributed unused leave. (3) Receive a lump-sum payment for all of the deferred unused leave as described above. Payments shall be tendered under this section no later than February 1 in the year following the employee's last day of employment. Nothing in this section is intended to authorize contributions in excess of the annual deferral limits imposed under federal and state law or the provisions of the supplemental retirement plan itself. 203. (a) If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days. An employee who secretes or absents himself or herself to avoid payment to him or her, or who refuses to receive the payment when fully tendered to him or her, including any penalty then accrued under this section, is not entitled to any benefit under this section for the time during which he or she so avoids payment. (b) Suit may be filed for these penalties at any time before the expiration of the statute of limitations on an action for the wages from which the penalties arise.
Customer: replied 1 year ago.
Sorry, forgot one more detail: does the date I reported the issue have any bearing on the strength or outcome of my case/argument? That is, I recevied a deposit on 1/10 but only after 3-4 attempts to get a hold of my HR rep did I finally get a hold of someone in the main HR dept who actually logged my case. Are they going to claim that I didn't report it soon enough and so they are off the hook for everything after the 10th or does that argument not hold any weight for them since no matter what, they owed me more money.
Expert:  Joseph replied 1 year ago.
The date you reported the issue has no bearing on the outcome, since they should have been aware of the money owed to you, and are responisble for their negligence in failing to pay you on time.
Customer: replied 1 year ago.
excellent, thank you!
Customer: replied 1 year ago.
Hello,

This Saturday, I received a check for my PTO payout (unused vacation time). This verifies that they truly did not pay me all that they owed me on my last day and it is my understanding based on what you wrote that I have a valid case to request up to 31 day penalties? My last day was 12/28/2012 and my check was sent to me 2/10/2013. What is the best way to proceed to get this penalty money from my former employer? Should I simply use the link you provided above and they will take care of the rest? Do you know how long it typically takes for a case like this to be handled?
Customer: replied 1 year ago.
Hello,

It seemed from what you wrote that my situation made me a candidate for penalties due to non-timely payment of my last check. I checked out the forms you provided a link to and it states : if employer willfully fails to pay, without abatement or reduction...etc. Well my former employer claims they "forgot" and that it was an oversight on their part. Does this qualify as "willfull failure to pay" or will they win the case claiming it was not willful, it was just an oversight?

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